The antitrust bill that passed the Senate Judiciary Committee Thursday and is now headed to the Senate floor is, at its core, an attempt to prevent the likes of Apple, Amazon and Google from boosting their own products and services on the marketplaces and platforms they own.
But upon closer inspection, some experts say, the bill as written could make it a lot riskier for large tech companies to deplatform or demote companies that violate their rules.
The American Innovation and Choice Online Act, co-sponsored by Sens. Amy Klobuchar and Chuck Grassley, prohibits self-preferencing by the largest tech companies. Unsurprisingly, it brought out the usual opposition from tech giants and their lobbyists this week. But it also inspired forceful critiques even from advocates who have been at the forefront of the techlash, including Free Press, which argued in a blog post Thursday that the parts of the bill could threaten enforcement against hate speech and other problematic behavior.
The trouble, they say, lies in part of the bill that would make it illegal for platforms to “discriminate” against “similarly situated business users” in the course of enforcing their terms of service. That, of course, could apply to a company like Google down-ranking another company in search results to promote Google’s own services. But, critics say, it could also lead to legal cases where tech giants get accused of anticompetitive behavior for deplatforming a business like Infowars.
The bill “opens the door to arguments that covered platforms are unlawfully discriminating against hate-and-disinformation purveyors by taking them down,” Free Press associate legal director Carmen Scurato wrote in a statement this week. “State AGs and future FTC officials charged with enforcing this bill could easily but falsely paint apps like Parler or businesses like Infowars as ‘similarly situated’ to other apps and sites that remain available on the covered platforms.”
Free Press wasn’t alone in making this case. TechFreedom, a significantly more industry-friendly group, raised a similar point in a letter to lawmakers this week. “If a majority of FTC Commissioners were bent on a partisan agenda — e.g., forcing mainstream platforms to carry Parler — it would be significantly easier for them to use the administrative litigation process to do so,” TechFreedom wrote, noting that the mere possibility of such litigation “could suffice to pressure Big Tech platforms to comply.”
To be clear, nothing in the bill prevents companies from enforcing their terms of service, per se, but critics argue the bill could lay the groundwork for cases that aim to prove the terms themselves are discriminatory.
A spokesperson for Klobuchar said that deplatforming a company for hate speech was unlikely to be a material harm to competition. If someone were to bring such a case with that argument, the spokesperson said, a platform could show it was acting to protect user safety.
This argument has won over groups like Accountable Tech, which often sit on the same side as Free Press when it comes to issues of tech accountability. “I have tremendous respect for Free Press and appreciate their concerns, but we wouldn't be supporting this bill if we felt it threatened platforms' ability to properly enforce their rules to safeguard people from harm,” said Jesse Lehrich, co-founder of Accountable Tech. Lehrich pointed to the fact that the provision only impacts discrimination against businesses, not individuals, and allows platforms to offer user safety as an affirmative defense. Lehrich said, however, that if there’s a way to further clarify the provision without gutting it, “I’m all for it.”
The topic of hate speech did come up, though sparingly, during the Senate debate Thursday, with California Democratic Sen. Alex Padilla arguing that the bill would “be a gift to bad actors seeking to prevent platforms from blocking business users that peddle hate speech or … election disinformation.”
This issue is just one of several that will need to be ironed out before the bill goes to a final vote. But it may also be among the trickiest to come to an agreement on: If an antitrust crackdown on Big Tech is the glue holding Democrats and Republicans together, content moderation is a surefire wedge.
During Thursday’s hearing, Sen. Ted Cruz, who voted in favor of the bill, made clear he wanted the legislation to do more to stop tech companies from interfering with conservative speech, noting that the current bill “would make some positive improvement on the problem of censorship.”
“As I read this statute, it would provide protections to content providers, to businesses that are discriminated against because of the content of what they produce,” Cruz said. “I think that is a meaningful step forward. That language is important."
The last thing Democrats want is to embolden the extremists who have motivated so much of their resentment toward tech to begin with. Then again, scrapping that provision altogether could cost Democrats the precious few Republican votes they’ll need to actually pass the bill.
